connection with the conversion of the vessel has now been completed and the officers who performed such duty have been paid therefor.

Navy Directories, November 1, 1940, and April 1, 1941, list the U. S. S. Zeilin (ex-President Jackon) with address as Seattle.

The orders issued to Lieutenant McCulloch disclose that he was to report for active duty in connection with the fitting out of the vessel which at that time was commissioned in ordinary "and on board when commissioned." This language is not clear since it appears that a vessel "in commission in ordinary" has a status of a vessel in commission. See title 635, U. S. Navy Regulations, 1920. However, it is evident that the officer was attached to the U. S. S. Zeilin for duty and in view of the conclusion reached whether or not the vessel was in commission is not material.

Section 6 of the act of June 10, 1922, as amended by section 2 of the act of May 31, 1924, 43 Stat. 250, provides for payment of rental allowance. The fourth paragraph of the amendment is as follows:

No rental allowance shall accrue to an officer, having no dependents, while he is on field or sea duty, nor while an officer with or without dependents is assigned as quarters at his permanent station the number of rooms provided by law for an officer of his rank or a less number of rooms in any particular case wherein, in the judgment of competent superior authority of the service concerned, a less number of rooms would be adequate for the occupancy of the officer and his dependents.

Section 21 of the same act, 42 Stat. 633, provides—

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That nothing in this Act shall operate to change in any way existing laws, or regulations made in pursuance of law, governing allowances in kind for quarters, heat, and light for officers

Section 1571, Revised Statutes, as amended by the act of May 11, 1928, 45 Stat. 498, provides

No service shall be regarded as sea service except such as shall be performed at sea, under the orders of a Department and in vessels employed by authority of law: Provided, That when officers are assigned to airships on duty requiring them to participate regularly and frequently in aerial flights the Secretary of the Navy shall determine and certify whether or not, in his judgment, the service to be performed is equivalent to sea duty. If such service is thus determined to be equivalent to sea duty, it shall be considered to be actual sea service on sea-going ships for all purposes.

"Sea duty" as used in section 6 of the act of June 10, 1922, as amended, and "sea service" and "sea duty" as used in the above quoted section of the Revised Statutes are one and the same thing. The terms are used interchangeably in the 1928 amendment to section 1571, Revised Statutes. Such section prior to its amendment was interpreted by the courts on numerous occasions. In Wyckoff v. United States, 34 Ct. Cls. 288, it was held that in order to come within the phrase "at sea" it is not necessary that the vessel shall be upon the high seas. It is enough that she is water-borne even if at anchor in a bay, or port, or harbor and not in condition presently to go to sea. The service involved in this case was performed

on a vessel not in commission but for the ship to be in commission was no more essential than that it should be employed in navigation. See also United States v. Seymonds, 120 U. S. 46; United States v. Bishop, 120 U. S. 51; United States v. Strong, 125 U. S. 656; United States v. Engard, 196 U. S. 511; 19 Comp. Gen. 370. In United States v. Barnette, 165 U. S. 174, it is stated that to constitute sea service three things, and three only, are necessary. The service must be performed "at sea," "under orders of a Department" and "in vessels employed by authority of law." It is evident that the duty performed by Lieutenant McCulloch was under orders of a department and it is equally evident that such duty was performed on a vessel employed by authority of law.

The orders addressed to Lieutenant McCulloch do not indicate that shore duty was to be performed. All the duty appears to have been on the vessel to which he was attached. It is reported that no suitable quarters were available on board the vessel or vessels in the vicinity or in Government-owned buildings ashore for Lieutenant McCulloch or other officers similarly situated, but the fact that suitable space is not available on board for quarters is not in itself determinative of the question as to whether or not certain service is sea duty within the meaning of the statute. For several years provision has been made in the annual appropriation acts for the Navy Department for "hire of quarters for officers and enlisted men on sea duty at such times as they may be deprived of their quarters on board ship due to repairs or other conditions which may render them uninhabitable." For example, see the appropriation act making appropriation for the Navy Department and the naval service for the fiscal year ending June 30, 1941, under the heading "Bureau of Supplies and Accounts," 54 Stat. 274. These provisions clearly recognize that an officer may be on sea duty while the vessel to which he is attached is undergoing repairs or is otherwise in such condition as not to permit the occupancy of quarters on board.

In view of the foregoing it is concluded that Lieutenant McCulloch, as well as other officers performing duties under like condition were on sea duty during the period they performed duty in connection with the conversion and fitting out of a vessel commissioned in ordinary and such officers without dependents are not entitled to rental allowance. If the assumptions on which the decision of July 24, 1941, 21 Comp. Gen. 60, was based were not correct and the facts in that case were similar to the facts of this case, that decision will not hereafter be followed.

(B-21026)

TRANSPORTATION-TRANSIT PRIVILEGES AND LAND-GRANT DEDUCTIONS CONTROLLING EFFECT OF MILITARY OR NAVAL USE NATURE OF IN-BOUND MOVEMENT

Where the bill of lading covering the in-bound movement of Government property for storage in transit is certified as covering military or naval property moving for military or naval and not for civil use, rail transportation charges on such in-bound movement are subject to the land-grant-deduction requirements of section 321 of the Transportation Act of 1940 even though it is uncertain whether the property will ultimately be used for "military or naval" or for "civil" purposes.

Assistant Comptroller General Elliott to A. F. Cleveland, Vice President, Association of American Railroads, December 1, 1941:

Reference is made to your letter of October 7, 1941, file 2-132-2, which reads as follows:

My attention has been called to a movement of manila fibers from San Francisco, California, to Des Moines, Iowa, imported from the Philippine Islands to be stored in transit at Des Moines and later moved into the point at which it is to be finally used.

A specific movement is covered by government bill of lading No. T03ps-159 from Strategic Materials Section, U. S. Treasury Department, Procurement Division, Washington, D. C., appropriation chargeable to the Strategic & Critical Materials, Proc. Div., Act of June 7, 1939, shipped by State Procurement Office for California, consigned to procurement Division, Procurement Dept., care of White Line Transfer & Storage Co., Des Moines, Iowa. The bill of lading carries endorsement "For storage in transit at Des Moines, Iowa. Military or naval property of the United States moving for military or naval use and not for civil use."

We are advised that the railroads have published a storage-in-transit arrangement at Des Moines to take care of this movement providing for a through rate from San Francisco to final destination when shipments move from the transit point.

It is our understanding that it is probable that a very large proportion of this manila fiber will be used by the Navy and, therefore, will be entitled to land-grant deductions under Section 321 of the Transportation Act of 1940, but it is by no means certain that this will be the case and in the event this fiber should remain in storage until after the present emergency is over it may be used for commercial and not military purposes.

The final charges which will be assessed when the shipments move from the storage point will be based upon a through rate from San Francisco to final destination, and in the event the out-bound shipments should be used for military or naval purposes then the through rate could then properly be readjusted to take in consideration the proper land grant deductions. It would seem to us, however, that in view of the uncertainty of the final use to which this product will be put, that the charges on the inbound shipments into the transit point should be based upon the commercial rate as the government would be in a position to secure the benefit of land grant deductions if properly applicable when the final use of the commodity is determined.

I shall appreciate it if you will give this matter consideration as promptly as possible as the traffic is moving in considerable volumes.

The shipment covered by bill of lading No. TO3ps-159, to which you refer, appears to have been tendered on June 16, 1941, to the Western Pacific Railroad Co. at San Francisco, Calif., by the United States Treasury Department, State Procurement Office for California, for transportation thence to Des Moines, Iowa, via "WP DRGW MP CGW," and to have been delivered at Des Moines to the Procurement

470350m-42-34

Division, Treasury Department, by the Chicago Great Western Ry. Co. on June 24, 1941. The delivering carrier presented its bill No. F-213-A for the transportation charges which reflected deductions account of land grant and was so paid by G. F. Allen, chief disbursing officer, on voucher No. 597602, September 30, 1941. The bill of lading bore the following notation

FOR STORAGE IN TRANSIT AT DES MOINES, IOWA. MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL USE, AND NOT FOR CIVIL USE. THIS MATERIAL WAS TRANSPORTED FROM THE PHILIPPINE ISLANDS ON SS PRES. FILLMORE entered at this port June 13, 1941.

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It appears that storage in transit at Des Moines, Iowa, as authorized in item No. 4240-C of supplement No. 21 to tariff No. 50-E, I. C. C. No. 5521, of the Chicago Great Western Ry. Co.-being a reissue of item 4240-B, published in supplement No. 16 to that tariff— with respect to "Freight from Philippine Islands reaching United States or Canada through Pacific coast ports of entry," is subject to the requirement that all charges inbound to the point of storage must be collected "on basis of the rates in effect on date of shipment from Pacific Coast port of entry to the storage point." and to the provisions, among others, that—

(e) No storage room will be provided by the carriers, nor will the carriers assume storage charges, insurance premiums or other expense which might be incurred while the freight is in the custody of the warehouse company.

(f) When the Goods are stored under this rule in warehouses not operated by the carrier, the custody and possession of the goods shall be that of the consignee or owner.

(g) The time limit for transit privileges is twelve (12) months from the date of the freight bill covering the inbound shipment

It is apparent from the foregoing that payment for the inbound service is required to be made on the basis of treating the shipment into the storage, or transit, point as being a completed transportation service. Whether the shipment is or is not, in fact, thereafter reshipped from the storage point, pursuant to the authorizations and in conformity with the provisions of pertinent transit tariffs, is without effect upon the amount of the transportation charges required commercially to be paid upon completion of the inbound service to the storage point. In this situation there are for application, when the material comprising the inbound shipment consists of "military or naval property of the United States moving for military or naval and not for civil use," within the meaning of section 321 of the Transportation Act of 1940, 54 Stat. 898, 954, the requirements of the act of June 7, 1924, 43 Stat. 486, providing:

That hereafter payment shall be made at such rates as the Secretary of War shall deem just and reasonable and shall not exceed 50 per centum of the full amount of compensation, computed on the basis of the tariff or lower special rates for like transportation performed for the public at large, for the transportation of property or troops of the United States over any railroad which under land-grant Acts was aided in its construction by a grant

of land on condition that said railroad shall be and remain a public highway for the use of the United States, and for which adjustment of compensation is required in accordance with decisions of the Supreme Court construing such land-grant Acts, or over any railroad which was aided in its construction by a grant of land on condition that such railroad should be a post route and military road, subject to such regulations as Congress may impose restricting the charge for such Government transportation, and such payment shall be accepted as in full for all demands for such service.

The possibility that contrary to the currently noted purpose as expressly stated in an administrative certification upon the bill of lading covering the inbound service, the property here concerned may ultimately be put to a different use, not military or naval in character, would afford no sufficient basis, in view of the present record, for failing to make deduction for land grant, as provided in the cited statutes from the charges as required to be paid commercially for the inbound service. Whether on reshipment the use or purpose then intended to be served may be "military or naval," on the one hand, or "civil," on the other, does not change the fact that for the movement into the storage point the bill of lading here concerned is certified as covering military or naval property, moving for military or naval and not for civil use. The present record, therefore, as to this inbound shipment brings the transaction expressly within the requirements of section 321 of the Transportation Act of 1940, 54 Stat. 898, 954, for deduction for land grant and on the basis of the facts so indicated payment at other than the landgrant rates for the inbound service would not be authorized.

Concerning the reshipment of this property, if and when made, the charges therefor will be for computation in conformity with the circumstances then prevailing, considered in connection with the payment of inbound charges.

(B-17735)

TRAVELING EXPENSES-AIR TRAVEL-DELAYS INCIDENT TO MODE OF TRAVEL

If an officer's orders direct travel by air, without troops, from a point in the United States to an ultimate destination outside the United States, and prescribe reimbursement as for such travel, a delay incident to mode of travel at port of embarkation for the overseas portion of the journey would not affect the officer's travel status so as to deny reimbursement of actual traveling expenses or per diem in lieu thereof.

Assistant Comptroller General Elliott to the Secretary of the Navy, December 2, 1941:

I have your letter of November 18, 1941, as follows:

Reference is made to the letter of the Assistant Comptroller General of the United States to the Director, Bureau of the Budget, dated June 26, 1941, B-17735, setting forth the Assistant Comptroller General's comments and recommendation on the draft of a proposed bill initiated by the Navy Department